Araujo v. Brooklyn Martial Arts Academy

Appellate Division of the Supreme Court of New York

Araujo v. Brooklyn Martial Arts Academy

304 A.D.2d 779, 758 N.Y.S.2d 401

Appellate Division of the Supreme Court of the State of New York·Decided April 28, 2003·Published·Cited by 11 cases

Opinion

In an action to recover damages for personal injuries, etc., the defendant Brooklyn Martial Arts Academy appeals from an order of the Supreme Court, Kings County (G. Aronin, J.), dated October 2, 2002, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed insofar as asserted against the appellant.

[780]*780The infant plaintiff, a student at the defendant Brooklyn Martial Arts Academy (hereinafter BMAA), allegedly was injured when he slipped and fell while descending the interior stairs from the second floor in a building owned by Grafstein Associates. Grafstein Associates leased the building to 5817 Food Corp., which subleased the second floor of the building to BMAA. BMAA moved for summary judgment dismissing the complaint insofar as asserted against it on the ground that it neither created nor had actual or constructive notice of the alleged dangerous condition, i.e., a wet spot on the stairs. In opposition to the prima facie demonstration by BMAA of its entitlement to judgment as a matter of law, the plaintiffs failed to raise a triable issue of fact (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Pianforini v Kelties Bum Steer, 258 AD2d 634 [1999]).

In opposition to the motion, the plaintiffs alleged for the first time that the infant plaintiff’s injury was caused by a defective handrail on the stairway. The Supreme Court improperly considered this contention, as “[a] plaintiff cannot defeat an otherwise proper motion for summary judgment by asserting a new theory of liability for negligence for the first time in opposition to the motion” (Winters v St. Vincent’s Med. Ctr. of Richmond, 273 AD2d 465 [2000]; see Gustavsson v County of Westchester, 264 AD2d 408 [1999]; Alvarez v Lindsay Park Hous. Corp., 175 AD2d 225 [1991]). Santucci, J.P., Luciano, Townes and Rivera, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

In an action to recover damages for personal injuries, etc., the defendant Brooklyn Martial Arts Academy appeals from an order of the Supreme Court, Kings County (G. Aronin, J.), dated October 2, 2002, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed insofar as asserted against the appellant.

[780]*780The infant plaintiff, a student at the defendant Brooklyn Martial Arts Academy (hereinafter BMAA), allegedly was injured when he slipped and fell while descending the interior stairs from the second floor in a building owned by Grafstein Associates. Grafstein Associates leased the building to 5817 Food Corp., which subleased the second floor of the building to BMAA. BMAA moved for summary judgment dismissing the complaint insofar as asserted against it on the ground that it neither created nor had actual or constructive notice of the alleged dangerous condition, i.e., a wet spot on the stairs. In opposition to the prima facie demonstration by BMAA of its entitlement to judgment as a matter of law, the plaintiffs failed to raise a triable issue of fact (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Pianforini v Kelties Bum Steer, 258 AD2d 634 [1999]).

In opposition to the motion, the plaintiffs alleged for the first time that the infant plaintiff’s injury was caused by a defective handrail on the stairway. The Supreme Court improperly considered this contention, as “[a] plaintiff cannot defeat an otherwise proper motion for summary judgment by asserting a new theory of liability for negligence for the first time in opposition to the motion” (Winters v St. Vincent’s Med. Ctr. of Richmond, 273 AD2d 465 [2000]; see Gustavsson v County of Westchester, 264 AD2d 408 [1999]; Alvarez v Lindsay Park Hous. Corp., 175 AD2d 225 [1991]). Santucci, J.P., Luciano, Townes and Rivera, JJ., concur.

Araujo v. Brooklyn Martial Arts Academy, 304 A.D.2d 779, 758 N.Y.S.2d 401 (N.Y. Ct. App. 2003).

Pincite

304 A.D.2d 779 (Araujo v. Brooklyn Martial Arts Academy) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related